In 1709 (or was it 1710?) the Statute of Anne created the first purpose-built copyright law. This blog, founded just 300 short and unextended years later, is dedicated to all things copyright, warts and all. To contact the 1709 Blog, email Eleonora at eleonorarosati[at]gmail.com

Tuesday, 29 July 2014

This blogger was pleased to see, by Beijing Notification No. 5: Beijing Treaty on Audiovisual Performances, that the People’s Republic of China has ratified this treaty. According to this notice:

The Director General of the World Intellectual Property Organization (WIPO) presents his compliments to the Minister for Foreign Affairs and has the honor to notify the deposit by the Government of the People’s Republic of China, on July 9, 2014, of its instrument of ratification of the Beijing Treaty on Audiovisual Performances, adopted at Beijing on June 24, 2012.

The said instrument contained the following declarations:

– “The People’s Republic of China shall not be bound by Article 11(1) [bad news for performers: "Performers shall enjoy the exclusive right of authorizing the broadcasting and communication to the public of their performances fixed in audiovisual fixations"] and (2) [ditto: "Contracting Parties may ... declare that, instead of the right of authorization provided for in paragraph (1), they will establish a right to equitable remuneration for the direct or indirect use of performances fixed in audiovisual fixations for broadcasting or for communication to the public. Contracting Parties may also declare that they will set conditions in their legislation for the exercise of the right to equitable remuneration"] of the Beijing Treaty on Audiovisual Performances.

– “The Beijing Treaty on Audiovisual Performances shall not apply for the time being to the Hong Kong Special Administrative Region of the People’s Republic of China until otherwise notified by the Government of the People’s Republic of China.”

The date of entry into force of the said Treaty will be notified when the required number of ratifications or accessions is reached in accordance with Article 26 of the said Treaty.

China joins Syria, Botswana, the Slovak Republic and Japan, but there's still some way to go before the treaty comes into force. as Article 26 states:

This Treaty shall enter into force three months after 30 eligible parties referred to in Article 23 have deposited their instruments of ratification or accession.

Friday, 25 July 2014

A court in Spain has overturned a previous ruling that had led to the blocking for a number of file-sharing sites. Back in May this year the anti-piracy group FAP secured injunctions in court forcing internet service providers in the country to block various file-sharing set-ups, including SpanishTracker, PCTorrent.com, NewPCT.com, PCTestrenos.com, Descargaya.es and TumejorTV.com - but in a blow to the content industries - who had celebrated the earlier ruling - an appeals judge in the wonderfully named Court of Instruction No.10 (well that's according to TorrentFreak) has said there are "insufficient grounds" for blocking the offending sites in order to protect intellectual property rights - although thus will no doubt prompt fresh calls to extend or revise the so called Law Sinde in Spain which was meant to have allowed web blocking as a remedy against internet piracy from March 2012.

It seems Amazon is trialling a 'Spotify' type service which will allow Kindle users to subscribe for ebooks - paying $9.99 a month to have access to 640,000 books and nearly 7,000 audio books. Richard Mollet, the Chief Executive of the Publishers Association in the UK has said that it is essential that any subscription service properly rewards writers and publishers. Kindle Unlimited joins Scribd, EnTitle and Oyster - but with the potential a far far bigger library of books available to subscribers - although no books from any of the 'big five' publishing houses (Penguin Random House, Simon & Schusterm, Harper Collins, Hachette and Macmillan are featured in the prootional video which had been seen by Gigam - although Lord of The Rings, books from the Harry Potter seriesand Life of Pi were apparently seen in the video.And Google is possibly experimenting with a new system that would see adverts for legitimate content platforms positioned at the top of searches for unlicensed movies or music. Google has been widely criticised by the music and movie industries for not doing enough to steer web-users to legitimate rather than illegal sources of content.Bornstein & Bornstein, a firm of attorneys in San Francisco are being accused of censorship after reportedly using a DMCA copyright takedown notice to remove a controversial and secretly filmed video from YouTube. A certain Jackson West had attended one of the firm's sessions on how to progress local evictions of longterm tenants, and video taped people protesting at a seminar given by the lawfirm . However you can still see the video via Vimeo - for now - from a link on TechDirt.

US fashion and make up blogger and YouTube staris facing a copyright infringement action from Ultra Records and Ultra International Music Publishing, home of Calvin Harris and Deasmau5. The case, filed in the United States District Court in Los Angeles, makes it clear the label has only begun its search of Phan’s many online productions, but has so far uncovered dozens of infringements, according to the complaint. Those videos have been viewed more than 150 million times, the plaintiffs said. However at lest one Ultra artist, Kaskade, the globally renowned US DJ who was nominated for a Grammy last year, is not happy with his label's stance tweeting "Copyright law is a dinosaur, ill-suited for the landscape of today’s media.” “I’m not suing @MichellePhan + Ultra Records isn’t my lap dog. I can’t do much about the lawsuit except voice my support for her.".

And finally, Malibu Media, perhaps wrongly accused of being a copyright troll, has succeeded in an infringement action against Don Bui, an immigrant from Vietnam who is now a naturalized US citizen, after the judge in the case gave short shrift to his explanation that the reason he downloaded and kept 57 Malibu Media porn movies from Kickass Torrents was because he had no idea how torrents work - and saw nothing wrong in "ordering movies" from Kickass Torrents. The erotic film studio has filed thousands of lawsuits against "John Doe" defendants in the U.S., in many cases "collecting a couple of thousands of dollars from "scared file sharers who do not want to go to court." US District Judge Robert Jonker reportedly said this "Defendant has some quarrels with the details of how BitTorrent works, but nothing that the Court sees as a fundamental or material issue of fact. Even as Defendant describes the facts, using BitTorrent technology, he ultimately winds up with 57 unauthorized copies of Plaintiff's works--copies that did not exist until Defendant himself engaged the technology to create new and unauthorized copies with a swarm of other users. True enough, the process is not identical to the peer-to-peer file sharing program in Grokster. It is, however, functionally indistinguishable from the perspective of both the copyright holder and the ultimate consumer of the infringed work. In both situations, the end user participates in creating a new and unauthorized digital copy of a protected work. It makes no difference from a copyright perspective whether the infringing copy is created in a single wholesale file transfer using a peer-to-peer protocol or in a swarm of fragmented transfers that are eventually reassembled into the new infringing copy." Bui's attorney also suggested his client was a "poor immigrant" who didn't understand English very well" - that argument was shot down as well. More on TechDirt.

Thursday, 24 July 2014

Victor Lilley v Euromoney Institutional Investor plc and Metal Bulletin plc; Victor Lilley v Chartered Institute of Management Accountants; Victor Lilley v Aspermont UK Ltd [2014] EWHC 2364 (Ch) is actually a trilogy of actions on which Mr Justice Birss ruled in the Chancery Division, England and Wales, last week. In all three he was required to determine issues in relation to damages claims made by Lilley against against three publishers for copyright infringement.

Back in the 1990s, Victor Lilley wrote articles for various publications, for which he was paid a fee. Some time after their publication in traditional print format, copies of these articles appeared on the internet, without his permission. Lilley maintained that making his articles available on the internet infringed his copyright. However, he claimed some extraordinary sums of damages: £27 million from Aspermont, £117 million from Euromoney and £450 million from CIMA. The claims were heard together.

Lilley applied for Birss J to recuse himself on various grounds, one of which was that he had executed what Lilley described as "yet another arbitrary, oppressive and unconstitutional action by servants of the government and the Court". Lilley also sought an adjournment in respect of his claims against CIMA and Aspermont and for an order compelling Euromoney to answer a request for further information. In response, CIMA and Aspermont applied for Lilley's claims to be struck out on the ground that his claim for damages was "ludicrous".

In these proceedings Birss J had to determine (i) whether he should have recused himself due to apparent bias; (ii) whether the claims against CIMA and Aspermont should be adjourned on the basis that Lilley could not deal with all the claims together; (iii) whether to strike out Lilley's claims against them; (iv) whether the damages claim was indeed ludicrous; (v) whether Euromoney should be compelled to provide further information and (vi) whether a civil restraint order (CRO) should be made against Lilley.

Mr Justice Birss held as follows:

Recusal

Lilley had objected to the listing arrangements. However, the way his objections were dealt with would not lead a fair minded and informed observer to conclude that there was any real possibility that the judge making those directions was biased against him. What's more, the fact that judges reached the same or similar conclusions to questions they themselves had decided in an earlier case would not lead the fair minded and informed observer to think that a judge in that case was or would be biased.

By far the most proportionate, cost-effective and fair way to resolve the various issues arising in such closely related cases was to hear the applications together. It was important that the parties were on an equal footing, but Lilley's difficulties in preparing for the hearing were of his own making.

Striking out of Lilley's claims

Most of Lilley's claims against CIMA had already been struck out on the basis of the Limitation Act 1980. He had also been given the opportunity to provide further information in relation to any infringing acts on which he intended to rely which had taken place within the limitation period, but had not done so. Accordingly the rest of his claim against CIMA would be struck out. His claim against Aspermont would not however be struck out; most of it was caught by the limitation period, just as happened with CIMA, but he still had a chance to provide particulars of alleged infringements falling within the limitation period. The fact that his pleading was far too long, unclear and argumentative was not of itself a ground for strike out at this stage,

Calculation of damages

Lilley's damages would be calculated on an objective, willing licensor/willing licensee basis, at a sum which properly compensated Lilley for the infringements. This figure would be compensatory, not punitive in nature, looking at actual, commercially realistic rates for the appearance of articles on the internet.

The fair thing to do was to give Lilley one last chance to advance a proper case and set out a realistic claim relating to the quantum of damages.

Request for information

Lilley's request for further information was 22 pages long, argumentative and unclear, and Euromoney had gone to considerable lengths and cost to explain its position to him. Since requiring the company to set out yet further explanation of its position would achieve nothing, the request would be refused.

The CRO

Lilley's recusal application had been dismissed as totally without merit, as had his applications for adjournment and his request for further information. The very least that the court could do in such circumstances was to make a limited CRO.

In deciding whether a litigant had persistently issued claims or made applications which were totally without merit for the purposes of an extended CRO, the court should consider his conduct as a whole, so far as it could. All aspects of the litigant's conduct could be relevant, and not just his conduct in the proceedings in question. Since Lilley had shown an irrational refusal to take no for an answer on numerous occasions, there were ample grounds for concluding that he had persistently issued claims or made applications which were totally without merit. An extended CRO would be made in each of the three cases before the court. This has the effect that, for two years, Lilley would be restrained from issuing claims or making applications in the High Court and the County Court without first obtaining permission.

Cases like this are always sad. A claimant who knows or believes that his copyright has been infringed will often be ablaze with anger and resentment, especially when it appears that the infringer is well-resourced and has profited from the infringement. However, it is important to retain a sense of proportion and that is what Birss J has done.

Last week on the 1709 Blog we reported that the Authors' Licensing and Collecting Society (ALCS) in the United Kingdom had commissioned a survey on authors' earnings, "What Are Words Worth Now? A Survey of Authors' Earnings", by Queen Mary, University London's Phillip Johnson, Johanna Gibson and Gaetano Dimita. The most recent ALCS News is now promoting a further survey, this time on behalf of the European Commission, and also relating to authors' earnings -- particularly scriptwriters. Says the ALCS:

The European Commission has asked Europe Economics and the Institute for Information Law of the University of Amsterdam to undertake a study on the remuneration of authors and performers. The study will focus on audiovisual and musical works and is therefore of most relevance to scriptwriters.

The results are likely to influence future EU policy on the remuneration of scriptwriters so the survey gives writers in audiovisual fields the chance to have their say in this.

Please note that all responses will be confidential: neither Europe Economics, the Institute for Information Law of the University of Amsterdam nor the European Commission will be able to identify you.

The deadline set for the survey is 8 August 2014 but this may be extended.

If you are a scriptwriter, act for one or know one, do please encourage them to participate.

Wednesday, 23 July 2014

A few days ago the Wall Street Journal (WSJ) published an imaginative piece by American singer-songwriter Taylor Swift bearing the charming title For Taylor Swift, the future of music is a love story, in which she discussed the future of music and music industry. 1709 Blog friend Richard Tomasi (@FathersNotCool) analysed it for us. As his Twitter handle suggests, Richard is a fun Italo-Irish living in London. He has now cemented a passion for copyright with a PGDip in UK, US & EU Copyright Law, having previously achieved a BEng in Telecommunications and an MA in Mass Communications. A professional career in IP Law is the path he now wants to take, having just completed the GDL.Here's what Richard writes:

Taylor Swift is incredible. There, I said it. No, not
that the 24-year-old country singer is so extraordinary as to seem impossible,
but in the sense that she is not credible or, if you prefer, hard to believe.

I
am not, however, talking about her music.

I do not know her music.

I am sure I
have probably heard some of her tunes, by chance, on the radio whilst waiting
in a barber shop or whilst watching TV and it popping up in an advert. And I am
sure it was delightful and creative.

I can definitely say I know what she looks
like, but that is because she dated one of the boys from One Direction.

... and Taylor Swift at LA airport(note the mutual passion for check shirts)

And
Twitter was not happy when they broke up.

But she is also a known and renowned cantautrice, having won many an award
from an industry that likes giving out awards.

An industry that she sees as
just coming alive, according to the column she wrote for the Wall Street
Journal earlier this month. The
article was to be, it seems, yet another fuse, ignited by her, of a stick of
dynamite labelled ‘Internet’. If this was the WSJ’s intention, well, kudos! The
internet clambered to shout and scream its opinion. And sifting through the
white noise, there are some very valid points made. But this was to be expected, though, when a successful
performer – in music industry terms – decides to predict the future of her
industry. She becomes somewhat of an easy target. Solely because the industry
goes way deeper than the faces we see on the various platforms that flood our
daily lives.

“Where will the music industry be in 20, 30,
50 years?” she opens wistfully. A question which she does not particularly answer,
but not because it is quasi-impossible to answer (just think, 50 years ago the
Phillips tape cassette recorder – the little device that would release
unprecedented piracy – was only one year old) but she attempted to do so
without mentioning the word ‘copyright’ once. Not once in 1,174 words.

As I
said, the girl is incredible.

Copyright is the law that governs who can commercially
exploit cultural creations and to what extent. Musical creations are one of the
subsets in the category. To quickly understand how much copyright, the
foundations of the music industry, has evolved in the last 53 years (that way
we coincide nicely with the Rome Convention yet stay within Taylor’s predictive
order of magnitude) one need only know that when Thin Lizzy signed to Decca in
1970 their contract was three and half pages long whilst the Gorillaz had to
plough through over 100 pages when signing to EMI in 2003. So, you see, not to
consider how copyright may evolve from now to 2064 when considering the future
of the music industry is a bit of an oversight. An oversight made by someone
who goes on to say that “Music is art, and art is important and rare.
Important, rare things are valuable. Valuable things should be paid for.”

This, in itself, is a massive statement,
something I may ask the next song-writing busker I see in London about.

The 80s are over (thank goodness)

Yet it
does not cross her mind to question or explain how the scarcity of her intangible
product is created? The music industry,
as we know it, will be fine as long as the copyright owners, usually the record
labels, find ways to exploit their ‘property’. That is, it must be prepared to
change and evolve. We must stop comparing the now to the 1970s/80s. Copyright
and methods of distribution have changed quite significantly since. Historically,
this has been done through lobbying for a more owner-friendly legal approach,
at the expense of the consumer, instead of actually coming up with new viable
business models. For example, the very robust anti-circumvention elements that
popped up in US DMCA and the parallel EU InfoSoc Directive seem to have
come about via the creative industries’ – or as I like to call them,
entertainment industries’ – lobbying. Was it pressure from the very same
lobbyists that led to the US Congress passing the Sonny Bono Act? Napster,
well, we know what happened there, hashtag Metallica.

The industry will
survive. It has always come through significant technological changes somewhat
unscathed. It does so by finding new means to exploit its property, property
that was created via copyright. That is, it does eventually find new methods of
exploitation but only after it realises that it is probably best to adjust to the
new ways of distribution/consumption that have evolved. The day of album sales
as the primary source of revenue, and as a financial indicator to how well a
performer is faring, is now well in its twilight zone. It is naive to write
about the health of the music industry by simply looking at the decline in
album sales. The diagnosis will inevitably be terminal.

The big
artists are now brands, their image managed and merchandising looked after by a
team of IP lawyers. New streams of revenue have developed and are growing as I
write, from the concept of crowd-funding where music is treated like a
commissioned work – a kind of first-you-pay-then-I-will-create basis – to the
idea of ‘fairtrade music’. It shows that perhaps some of the people behind the
exploitation of copyright-protected music are as creative, if not more in some
cases, as the actual songwriters.

This business creativity, financially successful or not, is nothing
new, from David Bowie issuing bonds on his future income in 1997 to Radiohead’s
pay-what-you-want experiment, via the internet, with In Rainbows ten years later (the band actually made about $0.15
more per album than it would have had through a conventional label release).

Yet
using the internet to disperse your songs had been done before then by the
Grateful Dead, Beastie Boys and Bowie. Radiohead, however, gave the decision on
how much their work was worth to the listener – successful this time, because
of their superstar status.

It's all about the balance .. But how do you keep it?

But this can’t last forever as copyright must also endeavour
to keep a balance between the author and a public that has quicker and
‘illegal’ ways to access the author’s works.

The industry depends on copyright,
and therefore the real question Taylor Swift should have been posing is: will
copyright survive?

I believe that it can only do so if it retains its
flexibility, via its exceptions. The real issue, I believe, is not if the
industry will survive but the music that can be exploited, and the fact that
some of that music is actually protected by law and for such long terms – "The forms of hit songs are so strictly
standardized, down to the number of beats and the duration, that no specific
form appears in any particular piece", wrote Adorno in 1938.

Perhaps it is
time to better divide the different categories that can enjoy the protection of
copyright and perhaps develop different tests of originality. That is, develop
a clearly defined off-shoot set of rights just for musical creations, under the
copyright tree. As it stands now, as music is art and art is rare and valuable,
and if by valuable we use a monetary standard, well, then Happy Birthday is
the most artistic piece of music ever written.

And remember, the 1980s was a
golden age for the industry and not the norm. How excited were the labels when
they knew they could get a listener who owned a tape to buy the same album on
the spanking new CD?

Tuesday, 22 July 2014

3D
printing is a bit of a buzzword at the moment and its not the first time that
this blogger has written about protection of IP rights in the 3D printer world.
Rightsholders need to be thinking about how best to exploit 3D printing rather
than how to avoid it, and one company that has done just that is Hasbro.

Rather
than targeting creators of fan art to stop them customising the popular My Little Pony range
(because, really trying to stop your fans from enjoying your product is not a
great business proposition), Hasbro is going to partner with 3D printing
company Shapeways to sell fan art.

Five
artists will design My Little Pony figurines which can be printed to order. John
Frascott, chief marketing officer at Hasbro, describes the process as
"mass customisation" - the figurines don't make sense for mass
manufacture but enough people will buy them that Hasbro can justify allowing
the artists to create and sell them.

It's
not clear whether the artists will be employed by Hasbro or whether they are
merely granted permission to create fan art (likely the former, for Hasbro to
retain control of any copyright created) but it is clear that this is a clear
demonstration that we will see more and more customised goods in future,
meaning more and more 3D printing.

What
has this got to do with copyright?

Well
ignoring any trade mark rights which Hasbro may have in My Little Pony, it is
likely that the main IP rights subsisting in the figurines are copyright and/or
design rights. This raises a few important questions, namely:

2.
If not, could they be works containing the author's own intellectual creation
and so subject to copyright protection in the rest of Europe? (Or in the UK if
the concept of a work is found to be harmonised…)

3.
If copyright does subsist, will the proposed private copying
exception allow people who have access to the design files to make copies
for private use at home?

4.
Will the files appear on P2P file-sharing sites, and if so how long before we
see an application for a blocking injunction against counterfeit My Little Pony
files?

Last week this blog recorded the renewal by Yemen of its declaration relating to the renewal of its facility to take advantage of Articles II and III of the Appendix to the Berne Convention's Paris Act of 1971. A week later, from Berne Notification No.264, we learn from WIPO that Thailand has declared that it is renewing its decision to avail itself of Article II for a further decade. That's not all: Vietnam has renewed its Article II and Article III rights according to Berne Notification No.265, as have the United Arab Emirates -- apparently one of the world's richer jurisdictions -- under Berne Notification No.266.

Monday, 21 July 2014

Is there anything more reinvigourating than flying back to one's own native hometown to catch up with family and friends and realise - once again - that copyright is all around us?

This is what happened to me last weekend when, arrived in my native Tuscany or - to be more specific - the town of Arezzo[also hometown to Piero della Francesca, Petrarch, Vasari, and popular contemporary musicians, to name just a few], I asked my non-copyright parents the usual question: "Any news from Arezzo?".

Having started with their usual list of major and minor occurrences, they also casually mentioned that a few days ago something happened in the context of major contemporary art public initiative Icastica.

Icastica outdoors

Now on its second edition, Icastica is a cultural festival that includes indoors and outdoors exhibitions and art installations, as well as performances, recitals, and lectures.

A few days ago, not only did some representatives of an animal protection league protest against a black sheep by Damien Hirst and urge actress Anna Falchi not to visit the offensive display, but the mayor ordered the destruction of an art installation named Promenade.

Back in May it was announced that artists Valentino Carrai, Luca Mauceri and Carlo Trucchi would have started working together with art critic Danilo Sensi on an art installation that would consist of a labyrinth made of cannabis sativa.

The idea was to re-discover old traditions - notably that a couple of centuries ago cannabis sativa was grown in Tuscany also for use in clothing and paper - and convey the message that any material may become art. The labyrinth would have been ready by mid-July, when plants would have reached a height of 2 meters and could be thus given an artistic shape.

Sadly none of the above will happen, as the mayor of Arezzo ordered the destruction of Promenade, on fear that - despite previous authorisation and the results of chemical analyses - the plants might be dangerous for the health of visitors. The mayor stated: "It was not possible to exclude the toxicity of those plants, even if chemical analyses excluded it; however, lacking absolute certainty, I could not allow them to grow in our town."

As soon as I heard this piece of news, of course I thought: but what about the moral rights of the artists?

Promenade before ...

Among other things, Article 20 of the Italian Copyright Act (Legge 633/1941) states that independently from the economic rights, and also after these have been waived, the author has the right to object to any deformation, mutilation or any other modification of or any act that is meant to damage his/her work, and which may prejudice his/her honour or reputation.

It is not difficult to imagine that destruction of their work of art would likely infringe the three artists' right of integrity, especially if it is true (as the lab analyses suggested) that the installation would not be dangerous for the health of visitors.

However, subsequent Article 22 states that the author who has known about and accepted the modifications to his/her work cannot prevent their execution or seek removal.

Is this what happened with regard to Promenade?

From the report of local newspaper La Nazione, the response would appear in the negative. Art critic Danilo Sensi stated: "I was requested a certificate that would attest the non-toxicity of the seeds used, which I asked Assocanapa to produce ... Without waiting [for the certificate], the work has been demolished. It's all very depressing, but this story is not over."

... and after its destruction

What does this mean, that the artists are planning to sue Arezzo municipality for copyright infringement, notably infringement of their right of integrity?

Stay tuned for further updates from Tuscany - Copyright Chapter.

Meanwhile, another pressing question arises: what has happened to all that cannabis? Has it been destroyed or not? If not, who has it?

[Note to non-native English speakers and those of other faiths - the reading of the banns is a process which one must go through to become lawfully married in the Church of England and various other Christian denominations - it is not the actual marriage, but a public declaration that it is intended to happen.]

At the end of last week, the UK content industry and ISPs announced their long-expected coming together in what was sometimes referred to as VCAP, but is now officially entitled Creative Content UK.The very long press release sets out the two major strands to the initiative, first a major education campaign - to which the Government is providing a contribution (dowry?) of £3.5 million, launching in September 2015 - with the subscriber alert programme, jointly funded by content and ISPs following on from that - although the date on which that particular element will be implemented is not specified.In detail, we are told

"London – 19th July 2014: Representatives from the UK's creative industries and major Internet Service Providers (ISPs) have come together with the support of government to launch Creative Content UK, a ground-breaking new partnership that will boost consumer awareness of the wide array of legitimate online content services and help reduce online copyright infringement.Creative Content UK will comprise two key components. The first, which will launch before Spring 2015, will be a major multi-media education awareness campaign, led by content creators and part-funded by government, that aims to create wider appreciation of the value and benefits of entertainment content and copyright.

The second component is a subscriber alerts programme that will be co-managed and co-funded by ISPs and content creators and due to begin at a later date. Participating ISPs will alert and advise subscribers when their accounts are believed to have been used to infringe copyright. Account holders will receive an alert from their ISP, advising them unlawful filesharing may have taken place on their connection and offering advice on where to find legitimate sources of entertainment content.Speaking today Business Secretary Vince Cable and Culture Secretary Sajid Javid announced the Government's support for this initiative and pledged £3.5 million in funding for the education awareness component of the campaign.

Vince Cable, Business Secretary said: “The creative industries in the UK are one of our brilliant global success stories. We have unrivalled creativity - from record breaking musicians to box office films - that excite and inspire people all over the world. Yet too often that content is open to abuse by some who don’t play by the rules. That is why we are working with industry to ensure that intellectual property rights are understood and respected. Education is at the heart of this drive so people understand that piracy isn’t a victimless crime - but actually causes business to fail, harms the industry and costs jobs.”

Sajid Javid, Culture Secretary, said: “The Creative Sector is a key driver of the UK economy contributing £8m to the UK economy every hour and underpinning over 1.5m jobs. Copyright is the foundation on which the Creative industries stand and we must ensure it remains strong and continues to support the growth of the sector. The alert programme shows industry working together to develop solutions which support the long-term health of the UK's creative industries. It will play a central role in raising awareness of copyright and pointing people toward legal ways to access content and I welcome this effort.”

The initiative has cross party support. Harriet Harman, Deputy Leader of the Labour Party and Shadow Culture Secretary said: “I strongly welcome the partnership between the creative sector and ISPs to work together on the Creative Content UK initiative. We need to ensure that talented UK creators and digital innovators see a continued financial return from online services for their ideas and efforts. I hope this initiative will encourage greater uptake of digital services and more responsible use of the Internet to safeguard jobs in the UK and reinforce our position as leaders in world class creativity.”Creative Content UK founding partners include the Motion Picture Association (MPA), the BPI (British Recorded Music Industry), and the four main internet service providers: BT, Sky Broadband, TalkTalk and Virgin Media, with the prospect of other ISPs joining at a later stage. It also has the backing and support of a broad range of organisations from across the creative community including the BBC, Equity, the Film Distributors’ Association, ITV, the Independent Film & Television Alliance (IFTA), the Musicians’ Union, Pact the Premier League, the Publishers Association and UK Music.

The campaign will aim to inform and encourage consumers - ranging from the next generation of digital users to 'silver-surfers' – about the huge range of entertainment content that is available from legal and licensed sources; giving them greater confidence when buying and using content online and providing additional guidance about internet safety.

Creative Content UK will operate within the wider context of successful programmes aimed at combating copyright infringement such as the blocking of illegal sites and working with advertisers and payment processors to cut off revenues to such sites. Full details of the initiative, including its branding and the scope of the education awareness campaign activity will be announced in due course."

Do read the press release in full if you wish to learn what the six participating CEOs (BPI, MPA, BT, Sky, Virgin, Talk Talk) and the 13 supporting industry CEOs think about the initiative - but like all forthcoming weddings, everyone is very excited about it - let's just hope that the marriage is a long and fruitful one!

Thursday, 17 July 2014

A federal judge has refused to stay a Seventh Circuit decision affirming that most of the Sherlock Holmes stories have lapsed into the public domain as the estate of Arthur Conan Doyle appeals to the U.S. Supreme Court. An attorney for the Estate told Law360 the denial on Wednesday by U.S. Circuit Judge Richard A. Posner was “no surprise,” adding that “the real question” is whether the Supreme Court will grant the Estate’s motion. Last month the Seventh Circuit upheld a lower-court decision that the elements included in the 50 Sherlock Holmes stories published before Jan. 1, 1923, are in the public domain in the United States. It rejected the Doyle estate’s rather novel argument that the great detective is a “complex” character who was effectively incomplete until the author’s final story was published in this country, leaving the entire body of work protected by copyright. Sherlock Holmes and the mystery of copyright HERE.

Rupert Murdoch's News Corporation Australia has used an inquiry by the nation's Senate into a proposed Australia/South Korea free trade agreement to suggest internet service providers become copyright enforcers. In it's submission to the inquiry, News Corp backs proposals in the treaty to criminalise 'net piracy, and the implementation of legal “incentives” for ISPs to “cooperate with copyright owners in deterring the unauthorised storage and transmission of copyrighted materials”. The move comes against the backdrop of the 2012 decision by Australia's High Court which confirmed that internet service providers are not liable for authorising copyright infringement by making their services available to people who do infringe copyright. New Corp's view is that current legislation, the submission says, does not “provide rights holders with means to protect rights online”.

An update on SoundCloud: The online music sharing service is seemingly close to a deal with the largest record labels Universal Music Group, Sony Music Entertainment, and Warner Music Group. Bloomberg says the major labels will agree to licences so SoundCloud can continue play their songs - and avoid potential legal disputes. It seems SoundCloud is offering the three major labels equity in the company, in exchange for both licensing deals and guarantees not to sue over any past copyright violations when the service shifts to a monetised model. According to Bloomberg, Universal, Sony and Warner are being offered between 3% and 5% of SoundCloud, along with a cut of future revenues.

The Pirate Bay is asking it's users to support the two original founders currently in custody - Gottfrid Svartholm and Peter Sunde with a banner on the website saying “Show your support by sending them some encouraging mail! Gottfrid is only allowed to receive letters while Peter gladly receives books, letters and vegan candy.” Sunde is now serving the sentence he received from the original trial in the District Court of Stockholm, Sweden on April 17, 2009. where the court sentenced the founders to one year in prison (which was reduced in appeal). He is being held in a high security prison in Västervik, although he recently requested a transfer to a lower safety class unit. Svartholm already serviced his TPB sentence, but he has been accused in Denmark of hacking into the mainframe computers of IT company CSC. His new trial starts in two months and he faces up to five years in prison. More on TorrentFreak.

The U.S. Copyright Office is asking the public to comment on what the Supreme Court’s ruling on streaming TV service Aereo means for the future of copyright law. The office “is interested in commenters’ views regarding the Supreme Court’s opinion in Aereo and how that opinion may affect the scope of the rights of making available and communication to the public in the United States.” Specifically, the office asked how last month’s 6-3 decision affects “unauthorized filesharing,” the right to make content available and other aspects of copyright law. More here.

TechDirt has an interesting take on copyright reforms in the US in an article entitled "Copyright Lawyers Prime The Pump For The Return Of SOPA" which has a fairly critical response to the American Bar Association's White Paper - which itself can be found here: A Call For Action For Online Piracy And Counterfeiting Legislation. The House Judiciary Committee is in the process of reviewing various aspects of copyright law for reform - and is currently looking at "Moral Rights, Termination Rights, Resale Royalty, and Copyright Term" covering four very distinct areas of law and policy. Rep. Jerrold Nadler (N.Y.), the subcommittee’s top Democrat, pledged to use the session to advance his bill to grant royalties to visual artists when their work is resold by an auctioneer, collector or other third party. And with moral rights, Rick Carnes, head of the Songwriters Guild of America and penner of songs for musicians including Garth Brooks and Alabama, said that a creator’s right to control the use of their creation is “widely embraced by the American public.” More from the EFF here. And whilst we are on reforms in the US of A - there is a guest blog on Billboard entitled "Our Best Bet for Screwing Up Copyright Reform? More Government Intervention" - it's from David Israelite, the President and CEO of the National Music Publishers’ Association (NMPA), the trade association representing American music publishers and their songwriting partners so its hardly unbiased - but worth a read particularly if you are interested in new models of licensing and the role of collection societies in the future. The Recording Industry Association of America is taking another public bashing after ReelRadio, a site that streams an archive of often decades-old historical radio shows, was forced to take down much of its library after the RIAA complained that the site was operating outside the terms of its license. In existence since 1996, ReelRadio "still looks and feels like a site from the past" and content includes decades-old ‘aircheck’ demo recordings which were often used to showcase radio announcers before being placed in the archives - but these often contain music controlled by the RIAA's members. It does seem to be acknowledged by Reel that what the RIAA wants is to apply (strictly) the terms of it's licence to use recorded music and Reel President Richard Irwin explained“The RIAA has determined that our service fails to meet the requirements for ‘archived programs’, which must be at least five hours in duration and may not be made available for more than two weeks. The service must also display the Title, Artist and Album of each featured song, but only while the recording is being performed” and “The RIAA insists that we obtain permission from the copyright owners of these old radio broadcasts. Many broadcasters understand the difficulty of this requirement, since nearly all radio stations have changed ownership, format, and call letters, many times over,” Irwin also explained, adding “Nevertheless, we are expected to provide the RIAA with an explanation of how we have permission from radio stations that no longer exist and copyright owners who have no interest in historic recordings of their property.”With the Global Repertoire Database stalled, the world's biggest music publisher Sony/ATV/EMI has announced that its entire songs catalogue can now be viewed and downloaded on its website by music services and other interested parties. The second biggest global publisher, Universal Music Publishing, has also announced that it will put its database online, although this will begin with its US repertoire before making its global data available.The author of the massively popular 'Jersey Boys' franchise which charts the rise of Frankie Valli & The Four Seasons and has been made into a book, a Broadway play and now a major motion picture, is facing an ongoing legal challenge which began in the federal court in the Beaumont Division of the Eastern District of Texas. Donna Corbello, the widow of Beaumont attorney Rex Woodard filed a suit in late 2007 against Thomas (Tommy) Gaetano DeVito, one of the original members of the Four Seasons. She claims DeVito wrote a book in 1991 that was identical to one written by Woodard - and that the book became the basis for the “Jersey Boys” musical. The case was transferred to Nevada federal court in July 2008, because DeVito lives in Las Vegas. The case has been winding its way through the court and there is now a trial date for Feb. 17, 2015, in Las Vegas with Judge Robert C. Jones presiding.

As the Southeast Texas Record reports, Woodard was a Beaumont attorney and a freelance music writer. He had been a big fan of the Four Seasons and wrote an article on the early days of the band, then decided he wanted to write a book about them. Woodard began interviewing band members and uncovered many new facts, including alleged criminal activities by some band members - and on this basis Woodward seemingly agreed terms on how a book would be written with DeVito - with DeVito getting “top billing” and Woodard’s name also appearing on the published work - and that Woodard would share in the royalties. DeVito has denied that he showed Woodard’s manuscript to anyone, and claimed he had only “told stories to the writers and director.” In a 2012 ruling, Judge Jones found that the agreement made DeVito and Woodard 50 percent joint owners of the work, although DeVito argued that he is the sole author because he had final creative control. The case is now only against DeVito - the court having agreed that the licence to other third parties (for the screenplay and musical) pre-dated the copyright claim and so was valid.

Wednesday, 16 July 2014

This blogger today received Berne Notification No. 263,
a media release relating to a declaration by the Republic of Yemen Relating to Articles II and III of the Appendix to the Paris Act (1971). His first thought was that this must be the first time that Yemen has been mentioned in the 1709 Blog (but it isn't: see here). His second thought was that it was a very long time since he has spotted any activity relating to Articles II and III of Berne's 1971 Appendix. The text of the media release is as follows:

The Director General of the World Intellectual Property Organization (WIPO) presents his compliments to the Minister for Foreign Affairs and has the honor to refer to the deposit by the Government of the Republic of Yemen, on April 14, 2008, of a declaration that the Republic of Yemen avails itself of the faculties provided for in Articles II and III of the Appendix to the Berne Convention for the Protection of Literary and Artistic Works of September 9, 1886, as revised at Paris on July 24, 1971 (“Paris Act (1971)”).

The Director General of WIPO has the honor to notify that the Government of the Republic of Yemen deposited, on July 7, 2014, a notification renewing the said declaration for a period of ten years with effect from October 10, 2014, in accordance with Article I, paragraph 2(a) of the Appendix to the Paris Act.

The 1971 Appendix, mirrored by provisions to similar effect in the Universal Copyright Convention (Articles Vter and Vquater), provides for developing countries to avail themselves of certain leniences in the field of copyright. Article II limits the right of translation, Article III the right of reproduction.

Fun is guaranteed when you know everything about 'diligent search' ...

Issues surrounding orphan works are not only
important, but also make a great topic of conversation for summer gatherings.
If you are running short of insights into this fascinating copyright-related
topic, don't worry because 1709 Blog friend Tom Ohta of Bristows LLP (@tom_ohta)
is coming to your rescue.

Here's what Tom writes:

Orphan
Works: here we come!

As
readers may recall, earlier this year, the UK government launched a technical
consultation[here] on
the draft secondary legislation to introduce a licensing scheme for orphan
works in the UK [on which this blogger wrote a longer
(and critical) piece here] and to transpose the Orphan Works Directive into English law.

Previously,
orphan works have been the subject of somewhat sensationalist (and misleading)
commentary with buzz words such as the ‘Instagram Act’ which was ‘abolishing
copyright’ [here]. A good starting point for those
seeking to get up to speed with orphan works is the UK IPO’s (37-page) response to the technical consultation which
summarises the comments received and sets out its current position. In particular,
there are helpful flow-charts of how the licensing scheme is intended to work
and the process under the Orphan Works Directive (at pages 4 and 5).

However…
for those looking for the headline points, these are summarised below for your
perusal, followed by some thoughts on possible issues that may arise in the
future.

Authorising
body

· The
UK IPO will be the authorising body responsible for granting orphan licences.

Diligent
search

· A
‘reasonable search’ of the ‘relevant sources’ must be conducted. The regulation
requires applicants to search the register maintained by the UK IPO and
the databases maintained by OHIM.

· Where
the UK IPO and OHIM searches fail to reveal the owner of the work, applicants
must then check the sources listed in Part 2 of Schedule ZA1 to the CDPA: these
are set out in the Certain Permitted Uses of Orphan Works Regulations,
and different sources (including collecting societies) are listed depending on
the type of work in question, eg audiovisual, visual works,
newspapers etc.

· It
is likely that the Copyright Hub will play an important role in
the functioning of the licensing scheme by having, for example, inter-linked
databases to reduce the cost of diligent searches. However, it is currently
still at a test phase.

With your diligent search having a 7-year validity, you may even think of spending this time abroad

· A
diligent search will be valid for 7 years.

Applying
for an orphan licence

· Applicants
must provide information in the orphan licence application form (which has not
yet been released) showing that a diligent search has been conducted, and specifying
how it intends to use the orphan work.

· It
remains to be seen what level of detail the IPO will require to satisfy the
diligent search requirements. It is worth noting the detailed sector-specific
guidelines on due diligence criteria for orphan works which are set out in a Joint Report published in May 2008 as part
of the European Digital Libraries Initiative.

It
is unclear to what extent the IPO will have regard to these Joint Report
guidelines when considering applications under the Licensing of Orphan Works
regulation. In particular, the Joint Report guidelines suggest that as part of
a diligent search, the applicant should take steps to publicise the orphan
work, for instance, in trade publications, social networks, and in the press.
This is likely to increase time and cost, and it is questionable whether it
would be proportionate to require applicants to take such steps under the UK
regime.

Licence
terms

· An
orphan work licence permits the licensee to carry out acts that would otherwise
infringe copyright or performers’ rights for up to 7 years. However, there is a
statutory prohibition against the grant of exclusive licences and sub-licensing
is not permitted.

· The
licence may be granted subject to conditions, and the IPO has the discretion to
vary the licence terms during its term.

· Whether
a licence can be transferred is not addressed in the regulation. However, the
IPO has indicated that transferability of licences will be dealt with in the
licence terms, and the normal position is that they will not be freely
transferable, although each case will be considered on its facts.

Grounds of refusal

· The
IPO may refuse to grant a licence where it considers that the proposed
adaptation or use of the work is ‘not appropriate having regard to the
circumstances of the case, including whether the proposed adaptation
constitutes derogatory treatment of the work’.

· It
also has a wide discretion to refuse to grant a licence on ‘any other
reasonable ground’.

Licence fees

· The
IPO is entitled to charge a ‘reasonable licence fee’ for the licence term,
bearing in mind factors such as the licence fees charged for a ‘similar use’ of
a ‘similar relevant work’ which has not been orphaned. The IPO has been working
closely with sector-specific groups (as listed in the response) to ascertain potential licence fees.

· A
reasonable additional amount can be added to the licence fee to cover the IPO’s
costs.

· The
IPO must hold all orphan licence fees in a ring-fenced account, and must retain
these for at least 8 years from the date on which the licence was granted.

· After
8 years, if no rights holder comes forward to claim ownership, the IPO can
deduct its reasonable costs from the retained fee, and apply any surplus ‘to
fund social, cultural and educational activities’.

BREAKING: IPO expects revenant rightholders be in better shape than the one above

· If
a rights holder comes forward within 8 years from the date of the licence grant
and satisfies the proof of ownership requirements of the orphan work (regarding
which we currently have little information), the IPO must pay the rights holder
the licence fee paid by the orphan licensee within 2 months.

· If
the rights holder comes forward after the 8 year period, the IPO has the
discretion to remunerate the rights holder as it considers reasonable in all
the circumstances.

Appeals

· A
rights holder has a right of appeal to the First-Tier Tribunal (presumably, to
the General Regulatory Chamber) where it
considers that the IPO has acted improperly or failed to comply with its
obligations under the regulation. The procedural rules currently applicable to
the General Regulatory Chamber can be foundhere.

· An
orphan licensee can appeal to the Copyright
Tribunal (whose rules of procedure can be found here) if the IPO refuses to grant a licence. An
appeal can also be lodged by the orphan licensee in respect of any conditions
imposed by the IPO in connection with a granted licence, or in respect of the
licence fee amount.

What’s next?

The regulations will now be laid before
Parliament for approval, and are due to come into force on 29 October 2014 [this
is also the deadline for transposing the Directive into the laws of Member
States]. In the meantime, the UK IPO is no
doubt being kept busy developing the IT system and further fleshing out the
processes underlying the orphan works licensing scheme.

It
is anticipated that a number of issues are likely to raise issues for
stakeholders, including the following:

· Striking
the right balance when considering whether the diligent search requirements
have been met: the IPO will need to tread carefully to ensure that it
adopts a consistent approach which does not impose overly onerous obligations
on orphan licensees but also adequately protects the interests of rights
holders, whilst considering the interests of those responding to diligent
search requests.

· Obligations
on organisations responding to diligent search requests: the IPO
acknowledges the collecting societies’ views that where an organisation
receives a diligent search request, it is up to that organisation whether or
not they respond, and if so, whether they can charge for providing that
service. Given that the regulation does not impose any positive obligations on
organisations to respond to diligent search requests, how will an
organisation’s refusal to respond to a request (for instance, because it is
particularly onerous) or a licensee’s refusal to pay an organisation’s
requested administration fee (for instance, because it considers that it is
unreasonably high) be taken into account when the IPO evaluates whether a
‘reasonable search’ has been carried out?

· Global
access to digitised orphan works: the scope of the orphan licence extends to
digitising orphan works and making them available online. However, the
statutory scope of the licence is restricted to use within the UK. Thus, where
orphaned content is made available online, it raises questions as to how to
address concerns about unlawful use of orphan content in other jurisdictions.

Whilst
there are technical measures, such as geo-blocking, that could be deployed,
where a site contains both orphan and non-orphan content, this can be an overly
blunt tool. In the future however, it is feasible that reciprocal agreements
are entered into with other countries to enable UK-issued orphan licences to be
valid in those territories and vice versa [this is indeed something that this blogger heard IPO officers saying at a recent conference].

· Dealing
with ‘works within works’: how far does a diligent search need to go in
respect of a work which contains multiple works within it – for instance, or a
book which contains photos or drawings?

· Moral
rights: the law in this area is still evolving (for instance, in relation
to moral rights and parody) and it will be interesting to see how the IPO will
deal with moral rights issues when reviewing orphan licence applications.

It
is likely to take some time before we are able to see how effectively the
orphan licensing scheme will work in practice, and there will undoubtedly be further
issues that arise as the orphan work licensing scheme develops. Watch this
space.

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